Re: Illegality of death penalty

July 8, 2013 : Akintayo Iwilade

President Goodluck Ebele Jonathan | credits: File copy

Through an article titled ‘Illegality of death penalty’, eminent Senior Advocate of Nigeria, Mr. Femi Falana, made authoritative legal submissions in reaction to the reported ‘directive’ of Nigeria’s President Goodluck Jonathan which called on state governors to sign the death warrants of condemned persons. The respected human rights advocate’s views were published on page 81 of The PUNCH newspaper on Monday, July 1, 2013.

This piece identifies some assumptions that underpinned the respectable advocate’s submissions. Accordingly, it contends, with utmost respect, that the resulting arguments proceeded from a misapprehension of the stark position of the Nigerian Constitution on the legality of the death penalty. The said article also misconceived the proper context of the President’s alleged ‘directive’.

Alternatively, we argue for the legality of the death penalty and call for deeper introspection in the deployment of rhetoric advocating its hasty and merelyimitative abolition in Nigeria. Such introspection is highly imperative,particularly in proven cases of premeditated, first degree and gruesome murders.

In my view, the assumptions that seem to underpin the arguments and conclusions as contained in the respectable senior advocate’s piece include: (a) that the death penalty is illegal in Nigeria (and this assumptionis apparent from the article’s title “Illegality of death penalty”), (b)that the President has ‘directed’ the execution of all death row inmates across Nigeria without regard to their yet-to-be exhausted appeal processes pending againsttheir convictions, (c) that Nigeria is bound to honour and enforce the United Nations General Assembly Resolution 62/149 of 2007 purporting to place a amoratorium on the implementation of the death penalty in member states, (d) that ‘inordinate’ delays in the execution of death row inmates amounts to dehumanisation and thus, robs the State of the powers to carry out suchexecutions, etc.

In the first place, the foundation for the legality of the death penalty in Nigeria is as provided under Section 33(1) of the 1999 Constitution (as amended). For clarity, that Section provides that; “Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria“. Clearly therefore, while the inalienability of the right to life is unambiguously emphasised by the Constitution, a legitimate ground for derogation is provided for in the same Constitution. Accordingly, when statutes prescribe the death penalty for certain classes of crimes and so long as such Statutes derive their legitimacy from, and are not inconsistent with the Constitution, they are legally valid and enforceable. However, the ethical and jurisprudential questions, on what crimes should or should not attract the death penalty, are a fundamentally different matter altogether, and same is mentioned later in this piece. What must be continually noted is that the constitutional validity of the death penalty has been severally affirmed byte superior Courts up to the Supreme Court. It is common knowledge that the Supreme Court in particular have severally, either affirmed or quashed death sentences imposed by lower Courts in several cases. Indeed, to this day, neither the Supreme Court nor the Constitution have declared the death penalty as being unconstitutional, and to that extent, it cannot be validly described as illegal in Nigeria.

As for the President’s alleged ‘directive’, there is no thoroughly objective interpretation of the President’s alleged words, as widely reported in the media, that will definitively conclude that those words amounted to an order that death row convicts be denied of their rights to exhaustive and conclusive appeals- or even clemency, in deserving cases. The President’s alleged direct words, as even quoted in the piece under review, were that, “in the case of capital punishment, the state Governors will sign. Even governors find it difficult to sign. I have been telling the Governors that they must sign because that is the law”. Clearly, these words demonstrated an appreciation by the President that the death penalty cannot be pronounced and executed, except in accordance with the law.

And what is the law if not as stated in the quoted Section 33(1) of the Constitution, and other laws validly deriving legitimacy from the said Constitution, including extant legal principles relating to rights of exhaustive appeal, etc? Of course, the law mentioned by the President must also include the decided Nigerian authorities cited in the learned silk’s submissions under review, including Nasiru Bello v. Attorney-General of Oyo State (1986) 5 NWLR (pt. 45) 828, (1986) 2 N.S.C.C 1257where the Supreme Court reiterated the pre-conditions that must mandatorily precede a valid execution of a convicted prisoner. The Supreme Court said, and no one can reasonably disagree, that, “the execution of a convicted prisoneris the last act, in a series of acts beginning from his arrest; his trial and conviction, his appeals, and even after the appeals, the Governor of a State still has to consider the Report of the trial judge sent pursuant to the Criminal Procedure Law and finally, the report of the Committee for the Prerogative of Mercy.

It is after all these have been exhausted that the Appellant goes under the hangman’s noose or (as in the instant case) faces the firing squad.” So, it is not in dispute that the stated pre-conditions must be thoroughly in place before any Governor can even contemplate signing a death warrant. Clearly, the President’s statement does not contradict this legally valid procedure, as affirmed by the Supreme Court, making justification for the rhetoric against it difficult to locate. If anything, the President’s needlessly criticised statement affirmed commitment to the rule of Law by usage of the phrase, ‘it is the Law’. It means Governors should sign death warrants in accordance, but never in violation or avoidance of the sweet or if you wish,’ bitter’ dictates of the Law. The admonition to follow the Law cannot be objectively construed as an invitation to arbitrariness.

Flowing from the above, the cases of Nemi v. Attorney-General of Lagos State (1996) 6NWLR 42 @55 wherein the Court of Appeal held that; ‘a convict on death row is entitled to challenge torture, inhuman or degrading treatment arising from a prolonged delay in executing him” and Ogugu v. The State (1994) 9 NWLR (pt.366) 1 @ 47 where the Supreme Court held that, “The executive and judicial authorities must accept responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing reasonable time to appeal and consideration of reprieve”, rather than diminish, actually strengthen Mr. President’s widely reported view. This is because by ‘directing’ Governors tossing death warrants in accordance with the law (of course after appeals have been exhausted), the President has merely and very rightly nudged state Governors to their constitutional responsibilities to prevent a situation where convicts are subjected to “torture, inhuman or degrading treatment arising from a prolonged delay in executing them”.

The case of Kigula and others v. The Attorney-General (2005) AHRLR 197 (up cc 2005) page197 at 221, where the Supreme Court of Uganda directed the respondent to commute death sentences passed on the appellants to life imprisonment on the ground that “the inordinate delay in carrying out the death sentence after it has been confirmed by the highest appellate court is inconsistent with articles 24 and44(1) of the Constitution”, is absolutely not binding on any court in Nigeria. At best, it can only be cited for persuasive and academic effect as our courts will have to determine the appropriateness of such jurisprudence, in the peculiar case of Nigeria where citizens fall daily to gruesome crimes in an atmosphere of mendacious and arrogant impunity. The unreported decision in James Ajulu & Ors. v. Attorney-General of Lagos State, Suit No: ID/76M/2008also does not support any inference that the death penalty is illegal. What it raises is the question of the methods and the timing for the carrying out of such executions.

But of course, it is desirable to await the Supreme Court’s definitive pronouncement on all the many issues being weaved around the blanket death penalty abolition debates.

In similar vein, the much talked about United Nations General Assembly Resolution62/149 and 63/148 of 2007, purporting to place a moratorium on the implementation of the death penalty, is not legally binding on Nigeria. It also cannot be elevated to the status of law in Nigeria except its details are enacted into law by Nigeria’s valid legislative authorities. Even if Nigeria entered into a treaty to that effect, such treaty will possess no force of law until domesticated and passed into law in accordance with Section 12 of the1999 Constitution (as amended). Section 12(1) provides that, “No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly”.

Moving forward, the arguments against the death penalty are well known. One of the most famous is that it is doubtful whether it has served as a deterrent for similar crimes, especially homicide cases. But deterrence or not, it is a moral obligation of the state to give specific justice to victims of heinous crimes.

It is important for Nigeria to engage in a lot of introspection in deciding whether to abolish the death penalty or not. Abolition of death penalty for many classes of crimes is very much desirable but abolition is certainly untenable in proved cases of premeditated, first degree murder or callous decapitations, such as rape resulting in death, or permanent life threatening and irreparable deformities to the occasioned by the perpetrators to their victims.

The tendency to non-critical and often merely imitative adoption, of practices unsuited to our circumstances, should not be imported to a question as important as ensuring appropriate restitution for the many unsung and forgotten victims of heinous crimes. What one finds befuddling is that so much rhetoric is reserved for the safety and humanity of the perpetrators of even dastardly murders while very scanty regard is given to the memory of the real victims left to prematurely decompose in lonely graves.

This assertion holds true since in the blanket debate for abolition, little attempt is made, if any, to separate crimes of premeditated first degree murder or callous decapitations, in which the imposition of death penalty continues to be both legally and morally justified, from other categories, in which other forms of sentences are preferable.

The first consideration for the imposition of death penalty should be restitution for victims of the crime and not deterrence or other fanciful notions.

The first responsibility of the state, where any murder takes place, is to ensure restitution, and direct justice, for the victim. To do otherwise is to deny the dignity of victims while also mocking the memory of law abiding citizens who get felled by perpetrators that now turn round to demand what they gruesomely took away from their victims.

While convicted perpetrators of gruesome killings have all shades of opinions advocating for them, one wonders who, in the human rights community, speaks for the many victims of these perpetrators’ killings. do State Governor Adams Oshiomhole got the point and as such victims of gruesome killings, even though they die, will always be remembered.

Yes, i agree that those who kill other human beings shall die by the sword, according to the Laws of God who created heaven and the earth, no one else is supreme! So the case of Cynthia Osokogu, must become trivial and that those who killed Cynthia should be pardon as time goes on! Then that is to encourage crime in the society. I agree that those who kill other person(s) mus also die by laws of God.

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